The company has changed its legal form, should it create new local ones? regulations? An inspector from the military registration and enlistment office issued summonses to the company's managers, is this legal?
The company changed its organizational and legal form. Should we make new local regulations?
Question
Our company is undergoing a reorganization. The form of ownership changed: instead of a closed joint stock company it became an open joint stock company. For employees, virtually nothing has changed - neither the working hours, nor the volume job responsibilities. And the employer is the same. We do not change employment contracts, we only conclude them additional agreement, where we register the change from CJSC to OJSC. But what to do with local regulations? After all, formally the organization is now different. And how will we let new employees get acquainted with these acts if they indicate the old organizational and legal form? Petr D., Vice President for Human Resources (Moscow)
Answer
Labor legislation does not provide a direct answer to this question. But one can draw a certain conclusion by analyzing the provisions Labor Code . Article 75 of the Labor Code states that reorganization (merger, accession, division, separation, transformation) is not a basis for terminating employment contracts with employees. And article 43 of the code notes: the collective agreement continues to be valid in cases where the name of the organization is changed, reorganization is carried out in the form of transformation or is terminated employment contract with the head of the organization. As we can see, the legislation guarantees stability labor relations during reorganization. This means that this stability can extend to the LNA. Based on the above, we assume that You don't need to change local regulations(unless, of course, you yourself, on your own initiative, want to do this). It is enough just to change the name of the company (organizational and legal form) in staffing table, as well as in the forms of orders for personnel and issue an order in which to write: the regulatory acts of the JSC are used until they are replaced by the LNA of the JSC . You can put a stamp on the documents indicating that the organization has been transformed from a closed joint stock company to an open joint stock company.
An inspector from the military registration and enlistment office issued summonses to the company's managers. Is this legal? And how can we save them from fees?
Question
An inspector from the military registration and enlistment office came to our organization and said that we should have an automated program in which it is necessary to keep records of male employees, both pre-conscription age and those discharged into the reserve. And then he demonstratively issued five summonses for military training to managers, including the general director. He gave me the subpoenas so that I could pass them on to the leaders. Are the actions of the representative of the military registration and enlistment office legal and how to prevent the leadership from being at the training camp? Natalia K., HR Director (Moscow)
Answer
The legislation does not oblige employers to install an automated program for registering persons subject to conscription. military service. The inspector's statement is not based on the law. The fact that he issued summonses to summon the company's executives to a meeting, so to speak, on the spot, is most likely unlawful. To call a citizen to training, the military commissar must issue an order. Your employees can challenge it. Simultaneously with the application to the court, let them file a petition to prohibit the military commissar from enforcing the decision on conscription before the court considers the application. If you, as an official of the company, do not submit the summons, then you may be subject to a fine of 500 to 1000 rubles (Article 21.2 of the Administrative Code). If employees, having received summonses, do not show up for training, they can be fined 500 rubles (Article 21.5 of the Administrative Code). A legal entity is not subject to a fine for this.. And company officials cannot be disqualified, even if they commit an offense again - they do not appear at the meeting, having received another summons.
Considering that from September 1 of this year, some changes were made to the legislation, more precisely, closed joint-stock companies and LLCs were abolished, those who used these particular organizational- legal forms , many questions arose. Of course, many have not yet made changes to the charter of organizations; some do not even know when and what exactly they are obliged to do.
To find answers to all these questions, first of all, you should understand what this norm is related to. The fact is that from the specified date the status will be determined as public Joint-Stock Company And non-public joint stock company. However, the need for reorganization is not prescribed by law, nor does it imply any re-registration or closure of those legal entities, who had precisely such statuses.
What should the owners of CJSC and LLC do?
First of all, it is necessary to make changes to the charter of companies and their names. To do this, familiarize yourself with the concepts of public and non-public joint stock company. Public will be the one whose securities and/or shares will be placed by public subscription, that is, publicly or on these terms and conditions, of course, in accordance with the laws controlling the securities market. It is clear that if the title indicates that this company is a public joint stock company, it must follow these requirements.
In turn, companies that were previously considered Company, according to the law, do not have the right to conduct an open subscription, they are automatically equated to a non-public joint stock company. By the way, the laws do not directly indicate that the title should contain the term “ non-public" That is, it is enough to remove the name of the type of society from the name, in in this case, "closed". At the same time, companies that conduct (are going to conduct after registration) an open subscription for securities must indicate in the name that it is public.
It should also be noted that new law does not establish a time frame within which changes must be made to both the charter and the name (name) of the company. However, according to current legislation, this must be done at the very first (nearest) change made to the constituent documents. But make changes to the remaining documents where the previous ones are stated name of CJSC (LLC), such as, say, certificates of registration of rights, etc., are not required by law.
The question of using the organization's seal also remains open. Since the name of the organization must be indicated on it, it can only be used until the changes mentioned earlier are made. In the future it will have to be changed. After all, the name that is written in the constituent documents on the seal must be indicated, as well as the location of the company; no other data is necessarily required. However, we should also not forget that these changes (names in accordance with the new requirements) must also be reflected in unified register legal entities
Some companies that have been so far CJSC (LLC), in reports organizational and legal the form was reflected, indicating the appropriate code. At the moment, changes regarding this data are also not spelled out in the law that comes into force. If no changes are made to this classifier in the future, we can recommend following established order and continue to indicate the data that was indicated in previous periods, this will not become the basis for any negative consequences for the company itself. Of course, you should carefully monitor all kinds of additions and changes and, if any are adopted in the future, follow them. Now, it is important not to neglect the need to make appropriate changes in the constituent documents and determine what status is assigned to the company as a result of the fact that a change in the organizational and legal forms of CJSC and LLC was introduced, to indicate whether it belongs to public or non-public joint-stock companies.
If the LLC of the reorganized person is the only legal successor, and there is no transfer of control of the activity, then there is a reorganization with the aim of changing the organizational and legal form.
Why change the legal form?
Federal Law No. 99-FZ, which entered into force on September 1, 2014, significantly changed the institution of legal entities. Ceased to exist:
Companies with additional liability;
Closed joint stock companies.
The abolition of ALCs was painless for the business community, but joint stock companies were popular among entrepreneurs. Is it necessary to reorganize now?
There is no urgent need to change the OPF. By law, those legal entities that meet the criteria of publicity are considered public, regardless of which legal entity is indicated in their name. But changes will have to be made at the first statutory amendment.
The reasons for changing the legal type do not end there. Why else change OPF?
Servicing and maintaining joint stock companies is much more expensive: the legislator established a notarization of each decision taken;
Joint stock companies must transfer the maintenance of the register of shareholders to a licensed person, which will entail additional expenses;
For officials working in joint-stock companies, there are increased risks of attracting administrative responsibility. The fines for them are severe. This is why changing the OPF will make work easier for the business and employees. Companies strive to reduce risks, and reorganization is one of effective tools;
Regulatory authorities will not be able to impose sanctions on a newly created legal entity. Therefore, companies that have doubts about the legality of certain actions resort to reorganization;
If a company changes its direction of activity, but does not want to lose counterparties, The best decision- change in OPF.
How to reorganize a JSC into an LLC?
How to change the OPF of a legal entity? Changes can be made through transformation - this is one of the methods of reorganization, in which another legal entity is created with a different legal entity, but with all the rights and obligations of the previous organization.
In order to correctly transfer a closed joint stock company or open joint stock company into a limited liability company, you will have to go through a difficult path consisting of a number of sequential steps inherent in any type of reorganization. Since September 1, 2014, it has become easier to change the OPF. Since the process will not affect the rights and obligations of creditors, there is no need to:
Notify the registration authority about the start of the procedure;
Draw up a transfer deed;
Publish messages in the media;
Satisfy creditors' demands ahead of schedule and notify them of the start of the process.
Specifics of CBM conversion
The reorganization of a municipal unitary enterprise has a number of difficulties. MP is a commercial company, but does not own the property it manages. The owner of the property of the municipal unitary enterprise is municipality. And the reorganization of such an enterprise into another general enterprise is a way of privatizing state property.
The transfer of such an enterprise to a company is permissible only if there is a decision from authorized government agencies or a court.
For the procedure to take place, a unitary enterprise cannot go beyond the framework established by the legislator for small and medium-sized businesses in terms of:
Number of employees;
Profit over the last three years;
Residual value of funds.
The re-registration procedure includes a number of successive stages:
The local government or court decides to carry out the reorganization;
A plan for inventory, privatization and other preparatory activities;
Property is appraised;
An audit of activities is carried out, the value of assets that are privatized is determined;
The size of the authorized capital is determined;
Creditors are notified;
A transfer act and an inventory act are drawn up;
A new society is registered.
Features of transforming LLC into other organizational and legal forms
Civil legislation provides closed list OPF into which limited liability companies can be re-registered. These include:
Joint stock companies;
Business partnerships;
Production cooperatives.
Based on this norm, it will not be possible to re-register the company as an autonomous non-profit organization or other non-profit organization.
The reorganization process requires precision. The procedure may be declared invalid if the norms established by law are not met. It is important not only to complete the documents correctly, but also to complete the steps in a clear sequence.
The RIGBI company employs highly qualified lawyers specializing in registration, reorganization and liquidation of companies. Entrust the work to professionals, and you will not waste time re-issuing documents or correcting errors.
Options for changing the legal form of an enterprise
In accordance with current legislation and statistical data most relevant to commercial organizations Russian Federation There are two options for changing the legal form of an enterprise:
- Transformation of a limited liability company into a joint stock company;
- Transformation of a joint stock company into a limited liability company.
The relevant procedures are regulated Federal laws No. 14-FZ “On Limited Liability Companies” and No. 208-FZ “On Joint Stock Companies”.
Changing the legal form of an enterprise is a complex legally regulated process with many subtleties. First of all, when carrying out transformations, it is necessary to take into account the requirements that the law imposes on newly formed organizational and legal forms.
Note 1
The requirements for the authorized capital of a limited liability company differ from the corresponding requirements for an open joint-stock company. When transforming a limited liability company into an OJSC, the minimum amount of authorized capital increases to 100,000 rubles.
The decision to change the organizational and legal form of an enterprise is made voluntarily, by members of the company, or compulsorily, based on legal requirements.
Note 2
In accordance with the requirements of the legislation of the Russian Federation, if the number of participants exceeds 50, the limited liability company must be transformed into an open joint-stock company or a production cooperative.
Transformation of a joint stock company into a limited liability company
The transformation of a joint stock company into a limited liability company can be carried out on the basis of a decision of shareholders or an authorized body. The issue of transformation is put to a vote at the general meeting of shareholders based on a proposal from the company's board of directors. As part of the decision on reorganization, the procedure for exchanging shares for shares of company participants is determined and new constituent documents are approved.
After the relevant decision is made, a joint stock company that is a public company is obliged, in addition to notifying tax and social authorities, to publish an announcement about its reorganization and notify creditors.
In the process of reorganization of a joint stock company, after the exchange of shares for shares in the authorized capital of the newly formed LLC, the shares are canceled.
Note 3
The transformation of a limited liability company into a joint stock company is carried out in accordance with a similar procedure, and before starting the reorganization procedure, the company must ensure compliance with all legal requirements of the newly created organization.
Transformation of an open joint-stock company into a closed joint-stock company
As in the case of the previous option for transforming a joint stock company, the decision to change the organizational and legal form is made at general meeting shareholders of an open joint stock company. However, unlike conversion to a limited liability company, conversion to a closed joint stock company does not require the creation of a new legal entity.
To transform, after making the appropriate decision, the organization must make changes to the company’s charter, file Required documents to the registration authority and register the new edition of the charter, which will mark the end of the process of changing the organizational and legal form. At the same time, the reorganized company must comply with all the requirements imposed by law for closed joint-stock companies.
Changing the legal form of any enterprise is possible. This procedure is provided for by the Civil Code of the Russian Federation as a transformation.
Organizational structure of one legal entity. person changed to another does not affect the change in rights and obligations to other persons. The exception in this case will be the founders of the reorganized enterprise, legal relations with whom will now be established in accordance with the form of the reorganized enterprise.
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The transformation form underwent some changes to simplify the procedure in September 2019, but a year later all changes were canceled.
Peculiarities
The enterprise transformation procedure includes some features that should be taken into account before starting the reorganization:
| Reorganization in the form of transformation |
|
| The Civil Code of the Russian Federation establishes restrictions on changing the form of an enterprise |
|
| Change of ownership of the enterprise | Cannot be produced during enterprise reform. The composition is changed by a separate order. |
Also, a legal entity of any organizational and legal form must comply with the following requirements established by the Civil Code of the Russian Federation:
- name of the company;
- number of founders;
- minimum size .
Nuances of the procedure
Conducting a reorganization procedure is a complex process. It includes not only many features, but also many nuances. Without taking into account some of the subtleties of the transformation, the owner of the organization risks violating current legislation.
When carrying out, you need to consider:
- The need to create final accounting reports. The report date precedes the day of registration of the conversion;
- The need to provide new reporting in the transformed enterprise based on the final reporting of the liquidated organization;
- The transition of an enterprise from a special taxation regime to the simplified taxation system or UTII can only be made when submitting an application to the authorities.
The time frame for the reorganization procedure is from 2 to 3 months
Basic moments
When choosing new form the future of the enterprise, its participants need to be based on certain points.
The choice of a new organizational and legal form (OLF) of an enterprise is limited and is established within the framework of current legislation:
| Article of the Civil Code of the Russian Federation | OPF of the liquidated enterprise | OPF of a new enterprise |
| Art. 56 | OOO | JSC, production cooperative, Society with additional. responsibility |
| Art. 20 No. 208-FZ | CJSC, OJSC | LLC, production cooperative, non-profit partnership |
| Art. 17 No. 7-FZ | Autonomous non-profit organization | Fund |
| Establishment | Economic company, foundation, autonomous non-profit organization | |
| Art. 17 Federal Law “On Non-Profit Organizations” No. 7-FZ | Non-commercial partnership | Public organization, economic society, foundation, autonomous non-profit organization |
| Art. 11 Federal Law “On charitable activities and charitable organizations dated August 11, 1995 No. 135-FZ | Charitable organization | It is impossible to reform into households. partnership or society |
Other legal forms of organizations are reformed in accordance with the law in force in relation to them or the Civil Code of the Russian Federation.
Change of name for the transformed enterprise. Here it is worth considering that the name should reveal the essence of the work carried out by the organization. If the enterprise is called OOO “Obshchepit”, then it should be engaged in public catering.
It is prohibited to use other OPFs in the name; for example, the name OJSC “Construction Joint Stock Company “Zhilyo”” will be incorrect.
In addition, words and symbols belonging to the constituent entities of the Russian Federation (Moscow, Yekaterinburg, coats of arms of cities and regions) can only be used if the appropriate permits are obtained. This list also includes the words “Russia”, “Federal”, “State”. It is also prohibited to use abbreviations of foreign OPFs in Russian in names.
Possible change during reorganization legal address enterprises. In this case, the conversion period will be extended. Documents for the procedure are submitted to the authorities at the address initially indicated.
The transfer deed was simplified in 2019. The preparation and approval of provisions on rights and obligations transferred from one enterprise to another was not required. All rights were assigned automatically. The relaxations were canceled a year later in 2019.
Forms
Structural changes to an enterprise also include other features.
The reform of closed joint stock companies and open joint stock companies into LLCs involves notifying the Federal Service for Financial Markets of the intention to change the enterprise's general fund. The notice must include a statement that all shares have been redeemed. In addition, when reforming an OJSC, it is necessary to notify all third-party registry holders.
The reverse reorganization of an LLC into a joint stock company requires the issue of shares in Federal service on financial markets and their government. registration. The shares are securities forming the authorized capital of the enterprise.
As has already been said, the transfer of a closed joint stock company to an open joint stock company or vice versa is not a reorganization.
Reforming a municipal unitary enterprise or federal state unitary enterprise into an LLC or OJSC is prohibited by law. This limitation is specified in Art. 34 dated November 14, 2002 No. 161-FZ.
What it says here is that unitary enterprise can only be converted into municipal or government agency. A change in the form of organization can only occur after the initiator privatizes a state institution.
Order
Using the example of the reorganization of an LLC into a CJSC, we can consider step by step plan enterprise transformation procedures. This will allow you to take everything into account important points and avoid mistakes.
- Determination of a new general public fund of the enterprise by authorized persons.
- Approval of the form and conditions of reform. The procedure for changing participants' shares in shares. Approval of the charter of the reorganized enterprise at a general meeting.
- Establishing a new or maintaining the old address of the organization.
- Drawing up a transfer deed if necessary.
- Payment.
- Providing information to Pension Fund Russia by authorized persons.
Reports and confirmations
The preparation of reports and confirmation of all financial and material movements from the liquidated enterprise to the new one are indicated in the transfer act.
This includes:
| Financial statements | Reporting in 2019 determines not only the composition of the property, but also the obligations of the reformed enterprise. On its basis, an assessment is given, compiled on the day preceding the end of the liquidation. |
| Inventory acts | They include not only the state property of the enterprise, but also its obligations. |
| Accounting documents | For material assets of a primary nature, an inventory of other property of the organization that needs to be transferred during the transformation. |
| Inventory of accounts payable and receivable | It is also necessary to attach information that creditors and debtors have been notified in writing about changes in the enterprise's general fund. |
Limitations and Responsibilities
A number of restrictions apply not only to the form of transformation, but also to the minimum requirements for founders, authorized capital and other aspects of the reformed enterprise:
- authorized capital or minimum 10,000 rub., JSC – 100,000 rub.;
- , and CJSC, OJSC, LLC must have more than one founder;
- for a partnership - the founder must have the status of an individual entrepreneur, there must be at least 2 of them in the structure of the organization;
- non-profit partnerships have at least 2 founders;
- has at least 5 members;
- must contain in its name an indication of the planned or already ongoing activity.
In relation to some forms of enterprises, there are also some responsibilities during reorganization:
To carry out the reorganization procedure, the initiator is required to provide a number of documents, which may vary depending on what form the legal entity had and will have